On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0355.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sabatino and Alvarez.
Drake Primus, appellant in A-5034-08T3, filed a pro se supplemental brief.
These three appeals by three defendants who were jointly tried were calendared back-to-back, and we now consolidate them for disposition in a single opinion.
The three defendants were all charged in each of the six counts of the indictment with the following offenses: (1) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6; (2) first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; (3) third-degree possession of a weapon (a box cutter knife) for an unlawful purpose, N.J.S.A. 2C:39-4d;
(4) fourth-degree unlawful possession of a weapon (a box cutter knife), N.J.S.A. 2C:39-5d; (5) third-degree possession of a weapon (a baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4d; and (6) fourth-degree unlawful possession of a weapon (a baseball bat), N.J.S.A. 2C:39-5d.
The criminal episode occurred on December 6, 2005. The victim, Jason Zabotinsky, made several statements regarding the crime, and presumably would have testified at trial in accordance with those statements. However, he died of unrelated causes prior to trial. Accordingly, defendants moved to suppress his out-of-court statements. After conducting an evidentiary hearing pursuant to N.J.R.E. 104(a) on December 21, 2007, Judge Marmo ruled that the statement Zabotinsky made when the police first responded to the scene of the crime qualified as an exception to the hearsay rule as an excited utterance. The judge also found that the statement was non-testimonial, as a result of which it could be admitted without violating defendants' rights under the Confrontation Clause.
The case was tried over several days in July 2008, resulting in the following verdicts as to each defendant: On Count One, Manigo and Dix were each found not guilty of second-degree aggravated assault, but guilty of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). On Count Two, Manigo and Dix were found not guilty of first-degree armed robbery, but guilty of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1. Manigo and Dix were found not guilty of Counts Three and Four. Primus was found guilty of the offenses charged in Counts One (second-degree aggravated assault), Two (first-degree armed robbery), and Four (fourth-degree unlawful possession of a box cutter knife); Primus was acquitted of Count Three.
On October 17, 2008, all three defendants were sentenced. The court granted the State's motion to impose discretionary extended-term sentences on all three defendants, who qualified for such sentencing as persistent offenders. See N.J.S.A. 2C:44-3a. The following sentences were imposed.
Manigo was sentenced for second-degree robbery to eighteen years imprisonment subject to an eighty-five percent parole disqualifier and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For third-degree aggravated assault, he was sentenced to a concurrent term of five years imprisonment with a two-year parole disqualifier.
Dix was sentenced for second-degree robbery to fifteen years imprisonment with an eighty-five percent parole disqualifier and three years parole supervision pursuant to NERA. For third-degree aggravated assault, he received a concurrent five-year term with a two-year parole disqualifier.
In sentencing Primus, the court merged Court Four with Count Two (first-degree robbery), for which it imposed a term of thirty-five years imprisonment with an eighty-five percent parole disqualifier and five years parole supervision pursuant to NERA. On Count One (second-degree aggravated assault), the court imposed a concurrent nine-year term with an eighty-five percent parole disqualifier and three years parole supervision pursuant to NERA. The sentences were ordered to be served consecutively to a sentence Primus was then serving.
Manigo presents the following arguments:
THE COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL FOR THE DEFENDANT AS TO ALL COUNTS OF THE INDICTMENT.
THE COURT ERRED IN ADMITTING THE VICTIM'S STATEMENT AS AN EXCITED UTTERANCE, THUS, VIOLATING THE DEFENDANT'S RIGHT OF CONFRONTATION.
A. The Statement Was Not An Excited Utterance.
B. The Defendant's Right Of Confrontation Was Violated By Admission Of The Victim's Statement.
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF 18 YEARS AS A PERSISTENT OFFENDER.
Dix presents the following arguments: POINT I
THE TRIAL COURT ERRED IN DECIDING THE PRETRIAL MOTION AS IT DID; THE STATEMENT MADE BY JASON ZABOTINSKY TO THE POLICE WAS TESTIMONIAL IN NATURE AND SHOULD HAVE BEEN SUPPRESSED.
THE TRIAL COURT ERRED IN NOT SEVERING THE DEFENDANTS AND HOLDING SEPARATE TRIALS. (NOT RAISED BELOW).
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ITS COMMENTS TO THE JURY AFTER THE VERDICTS WHEN IT INFORMED THE JURY THAT THE VICTIM WAS THERE TO BUY DRUGS AND THAT EACH OF THE DEFENDANTS HAD PRIOR CRIMINAL RECORDS. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
In the brief filed by his appellate counsel, Primus presents the following arguments:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW). POINT II
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY AND THE NEED TO DETERMINE THE DEFENDANT'S CRIMINAL CULPABILITY WITH RESPECT TO THE DIFFERENT DEGREES OF ROBBERY AND AGGRAVATED ASSAULT. (NOT RAISED BELOW). POINT III
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, Primus also presents these arguments:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED A "PARTIAL" EXCITED UTTERANCE AND DENIED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S USE OF ABSENTEE WITNESS TO PROVE ITS CASE.
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO ADMIT EXTRINSIC EVIDENCE OF PRIOR WRITTEN AND ORAL INCONSISTENT STATEMENTS CONTRARY TO N.J.R.E. 613.
THE COURT'S FAILURE TO GIVE CURATIVE INSTRUCTION UNFAIRLY PREJUDICED DEFENDANT SINCE, CONTRARY TO THE EVIDENCE ADDUCED AT TRIAL, THE VICTIMS "ESOPHAGUS" WAS NEVER EXPOSED, AND THE POLICE WAS NOT ...